11-2374-ag

Nugroho v. Holder

BIA

Videla, I.J.

A079 708 152

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER

FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF

APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals 

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 4th 4 day of June, two thousand twelve.

5

6 PRESENT:

7 PIERRE N. LEVAL,

8 REENA RAGGI,

9 DENNY CHIN,

10 Circuit Judges.

11 ______________________________________

12

13 VERRY DWI NUGROHO,

14 Petitioner, 

15 11-2374-ag

16 v. NAC 

17

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL,

20 Respondent.

21 ______________________________________

22

23 FOR PETITIONER: Charles Christopher, Christopher Law

24 Group, PC, New York, New York.

25

26 FOR RESPONDENT: Tony West, Assistant Attorney

27 General; Russell J.E. Verry, Senior

28 Litigation Counsel, Elizabeth R.

29 Chapman, Trial Attorney, Office of

30 Immigration Litigation, United

31 States Department of Justice,

32 Washington, D.C.
2

1 UPON DUE CONSIDERATION of this petition for review of a

2 Board of Immigration Appeals (“BIA”) decision, it is hereby

3 ORDERED, ADJUDGED, AND DECREED that the petition for review

4 is DENIED.

5 Petitioner Verry Dwi Nugroho, a native and citizen of

6 Indonesia, seeks review of a May 20, 2011, decision of the

7 BIA affirming the July 28, 2009, decision of Immigration

8 Judge (“IJ”) Gabriel C. Videla, finding that Nugroho was

9 incredible and denying his application for asylum, 

10 withholding of removal, and relief under the Convention

11 Against Torture. In re Verry Dwi Nugroho, No. A079 708 152

12 (B.I.A. May 20, 2011), aff’g, No. A079 708 152 (Immig. Ct.

13 N.Y. City July 28, 2009). We assume the parties’

14 familiarity with the underlying facts and procedural history

15 of the case.

16 Under the circumstances of this case, we have reviewed

17 both the IJ’s and the BIA’s opinions “for the sake of

18 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

19 2008). The applicable standards of review are

20 well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng

21 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

22
3

1 In finding that Nugroho was incredible, the agency

2 reasonably relied on his failure to include in his asylum

3 application the threat he allegedly received in 2001, and

4 the inconsistency between his statement in the application

5 that his wife had repeatedly moved and his testimony that

6 she had been living with a relative for the past five years. 

7 These inconsistencies were substantial and bore a legitimate

8 nexus to his claim, as the threat and his wife’s repeated

9 moves would support his assertion that his attackers were

10 continuing to look for him. See Secaida-Rosales v. INS, 331

11 F.3d 297, 307 (2d Cir. 2003), superseded by statute on other

12 grounds as recognized in Xiu Xia Lin v. Mukasey, 534 F.3d

13 162, 167 (2d Cir. 2008). 

14 Although Nugroho now contends that he did include the

15 threat in the asylum application, at the hearing he

16 testified that he had forgotten to include this threat.

17 Nugroho also contends that there is no inconsistency as to

18 whether his wife moved repeatedly because, in his asylum

19 application, he had stated that he had moved from place to

20 place, not his wife. However, this contention fails to

21 explain Nugroho's statement in the asylum application that

22 his wife moved from place to place. As the Government
4

1 correctly notes, Nugroho failed to present these

2 explanations to the agency, and they are unexhausted. See

3 Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d

4 Cir. 2007). Regardless, neither of Nugroho’s explanations

5 compels the conclusion that the credibility finding must be

6 reversed. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d

7 Cir. 2005) (finding that the agency need not credit an

8 applicant’s explanations unless those explanations would

9 compel a reasonable fact-finder to do so). 

10 Further, Nugroho has not challenged the additional

11 basis of the agency’s adverse credibility finding, the

12 implausibility of his testimony that he repeatedly changed

13 his residence in order to evade his attackers, but that he

14 continued to work at the same church, although his attackers

15 knew he worked there. Because the agency’s adverse

16 credibility determination was supported by substantial

17 evidence, the denial of Nugroho’s application for asylum,

18 withholding of removal, and CAT relief was not in error

19 because his claims were all based on the same factual

20 predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

21 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,

22 523 (2d Cir. 2005). 
5

1 For the foregoing reasons, the petition for review is

2 DENIED. As we have completed our review, any stay of

3 removal that the Court previously granted in this petition

4 is VACATED, and any pending motion for a stay of removal in

5 this petition is DENIED as moot. Any pending request for

6 oral argument in this petition is DENIED in accordance with

7 Federal Rule of Appellate Procedure 34(a)(2), and Second

8 Circuit Local Rule 34.1(b).

9 FOR THE COURT: 

10 Catherine O’Hagan Wolfe, Clerk

11

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